Wednesday, 14 June 2017

What factors are to be considered by while framing of charge and discharge of accused?

“What are the factors to be considered by the court at the
time of disposal of an application under Section 227 of Cr.P.C.
 (e) When the court shall frame charges?”
21. Learned Counsel appearing on behalf of the respective parties have
submitted that there being no material in the statements recorded under
Section 161 of Cr.P.C. the learned trial court ought to have discharged the
accused persons. They also contended that since there is no material to go
for a trial, charges ought not to have been framed. Prior to delving into the
issue it would be profitable to refer to under Sections 227 and 228 of Cr.P.C.
Section 227. If upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge considers that thereis not sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.
Section 228. (1) If, after such consideration and hearing as aforesaid,
the Judge is of opinion that there is ground for presuming that the accused
has committed an offence which-
(a) Is not exclusively triable by the Court of Session, he may, frame a
charge against the accused and, by order, transfer the case for trial to the
Chief Judicial Magistrate, [ or any other Judicial Magistrate of the first class
and direct the accused to appear before the Chief Judicial Magistrate, or as
the case may be, the Judicial Magistrate of the first class, on such date as
he deems fit, and thereupon such Magistrate] shall try the offence in
accordance with the procedure for the trial of warrant-cases instituted on a
police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge
against the accused.
(2)Where the Judge frames any charge under clause (b) of sub-section (1),
the charge shall be read and explained to the accused and the accused shall
be asked whether he pleads guilty of the offence charged or claims to be
22. It is needless to say that Section 227 and Section 228 Cr.P.C. can
be termed as a precious safeguard i.e. pre-battle protection conferred upon
the accused by the statute.
23. In Section 227 Cr.P.C. the legislature in its wisdom used the
words ‘there is a sufficient ground for proceeding against the accused’whereas in Section 228(1) Cr.P.C. the legislature very consciously used the
words ‘there is ground for presuming that the accused has committed an
24. If we consider the said Section 227 Cr.P.C. very meticulously we
would find that discharge is possible if there is no sufficient ground
(emphasis supplied). In Section 228 Cr.P.C., the Court is empowered to see
if there is ground for presuming that the accused has committed an offence.
For the purpose of discharge sufficient ground is required but in case of
framing of charge only ground is required. The legislature very
conscientiously omitted the word ‘sufficient’ in Section 228 Cr.P.C.
25. On a conjoint reading of section 227 and Section 228 it appears to
me that the Court is to be satisfied itself only to the extent that the
allegation raised against the accused is either grossly frivolous or there is
any suspicion/presumption that the offence has been committed. Be it
mentioned, that the Court should be very cautious in allowing an
application Section 227 Cr.P.C. because without affording any opportunity
to the prosecution to substantiate the allegation through witness, the
accused gets an escape from the net of law. The Court is to see if any
material for presumption is there or not. If the answer is affirmative, charge
has to be framed.
26. While dealing with such situation, the Court is not supposed to
make an in depth study about the evidence to be carried by the prosecution
during the trial. It is not the duty of the Court to consider every nitty-gritty
of the case and to sift and weigh the materials of case diary by making a
roving enquiry, to find out the probative value of evidence to be led. Itpostulates just exercise of judicial mind of the Judge concerned. The test
that can be adopted by the Court is to consider if the statements and
documents collected during investigation are taken to be true would be
sufficient to uphold the charge or not.
27. On a microscopic examination of the statements made under Section
161 of Cr.P.C. by the charge-sheeted witnesses and the huge documents
specially call details report, polygraph test, CCTV footage, so far collected as
mentioned in the charge-sheet, I find that from the date of knowledge of the
marriage, the parents and relatives of Priyanka tried their level best to
dissolve the marriage. They took the help of top brass police officers and
politically influential person (Javed Ahmed Khan, local M.L.A.) and had also
offered to pay a handsome money to one Pappu Bhaiyya so that their lawful
marriage can be dissolved. From 01.09.2007 to 08.09.2007 there was
consistently consistent interference by the police officials of Lal Bazar. There
was persistent and serious mental torture from the said police personnel so
that Rizwanur disowns his wife. When the ice was not melted, those police
officers began to threat the victim that they would twist penal laws against
him and his family members. Days in and days out they called the victim
and his wife to report to the D.C. Office, Anti Rowdy Section and ACP office
and initially persuaded but when they found that those persuasion would
not click, they adopted the theory of threat. This apart, they engaged Pappu
(one of the petitioner) to dissolve the said marriage and in exchange of that
Pappu Bhaiyya was given a lucrative amount at I.T.C. Sonar Hotel, EM
Bypass. Video footage of that hotel reveals that Todi’s were there and Pappu
met them.28. Here one important factor which deserves notice is that the cumulative
effect of the circumstances should be considered in determining the alleged
involvement of the respective accused persons rather than considering the
same on a solitary isolation.
29. The question as to whether the Court should proceed on the basis as to
whether the materials brought on record, even if taken on face value, to be
correct in their entirety, disclose commission of offence or not. It has to be
determined having regard to the entirety of materials brought on record by
the prosecution and not on a part of it.
C.R.R. No. 1396 of 2011
(Ahok Kr. Todi vs. C.B.I.)

Present : Justice Siddhartha Chattopadhyay

Judgment Delivered On : 12.06.2017.

Read full judgment here : Click here.
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